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No doubt following up on Charlie Sullivan's post on unpaid law student internships, Steven Greenhouse at the New York Times has a story on the more general use of these internships. It's obviously been an issue for some time, but the bad economy has given employers more incentives to pinch pennies and made interns more desperate for experience, even the unpaid variety. These internships can provide valuable experience and lead to a good job, but they can also undermine the purpose of wage laws and highlight class problems when only more wealth students can afford months of unpaid full-time work. From the article:

With job openings scarce for young people, the number of unpaid
internships has climbed in recent years, leading federal and state
regulators to worry that more employers are illegally using such
internships for free labor.

Convinced that many unpaid internships violate minimum wage laws,
officials in Oregon, California and other states have begun
investigations and fined employers. Last year, M. Patricia Smith, then
New York’s labor commissioner, ordered investigations into several
firms’ internships. Now, as the federal Labor Department’s top law
enforcement official, she and the wage and hour division are stepping up
enforcement nationwide.

Many regulators say that violations are widespread, but that it is
unusually hard to mount a major enforcement effort because interns are
often afraid to file complaints. Many fear they will become known as
troublemakers in their chosen field, endangering their chances with a
potential future employer.

The Labor Department says it is cracking down on firms that fail to pay
interns properly and expanding efforts to educate companies, colleges
and students on the law regarding internships.

The story also notes the DOL's criteria for legal, unpaid internships, including similarity to academic or vocational training; no displacement of regular, paid workers; and that the employer derive no immediate advantage from the intern. That last one, in particular, seems hard to reach in a lot of cases.

The March employment numbers are in and they're the best we've seen in three years. The government is reporting that 162,000 jobs were added last month--a significant increase from previous months. Some words of caution though. First, Census hiring and a recovery from the horrible weather earlier in the year may be partially responsible for the gains. Second, the unemployment figure remained steady at 9.7%. Indeed, the country needs to add between 100,000-150,000 new jobs every month (depending on the source) just to keep the unemployment rate level. So, we're basically treading water now. Of course, that's a lot better than the drowning of the last few years.

This is obviously an important issue to working parents, but one that is often not easy for employers. Some simply resist because it represents a change, while others have struggled to deal with the complications that new work arrangements can cause. One issue that I'm particularly interested in is how workplace norms can affect the availability and use of flexibility measures. For instance, the University of Tennessee, where I am, has recently established a parental leave system for new parents that can include a semester off and an extra time before going up for tenure. One thing they're dealing with, however, is faculty members not taking advantage of the program. Of particular concern is pressure from more senior faculty. But workplace norms against such leave can also play a role. Indeed, I recently declined to invoke the semester-off leave--largely out of respect for my law school adminstration's strong support for other recent leave I've had. However, I'll concede that even as a tenured faculty member, it did occur to me that some of my colleagues who didn't have this option available, may not look favorably at others taking it. That wasn't a serious factor, as I don't think that attitude would be widespread, if it existed at all, but I certainly thought about it. And if someone with tenure is thinking about it, you can be sure that it's a big issue for many others.

The New Jersey Supreme Court just weighed in on the conflict between employer rights in the computers they provide and employee privacy rights. In a man--bites-dog turn of events, the employee won -- at least when the privacy interest at stake is attorney-client privileged communications.

In Stengart v. Loving Care Agency (the name of the defendant apparently is aspirational), plaintiff sued for harassment, retaliation and a variety of other claims after she had left her employment. She had also left behind her employer-provided laptop, from which (while still employed) she had e-mailed her attorney. In doing so, she had used a private, password-protected Yahoo! account to send and receive messages from her attorney, but she had accessed that account using the employer's laptop.She had not saved her ID or password on the laptop, but that was no problem for a computer expert, who created a forensic image of the hard drive, from which the employer's attorneys were able to retrieved a number of e-mails between plaintiff and her attorney. Although that attorney's e-mails contained the usual warning about privilege, the employer's law firm, Sills, Cummis (headquartered right across the street from where I'm writing this), reviewed the communications -- notifying the plaintiff only months later.

Loving Care, of course, had a policy reserving the right to review all e-mail accessed from company computers, which it claimed deprived plaintiff of any expectation of privacy in her communications in the first place and/or waived any privilege that would otherwise exist. The trial court bought the argument, but the Appellate Division reversed, focusing on the language of the policy, The NJ Supreme Court agreed but went further.

It began by noting that the employer's policy neither explicitly addressed accessing private e-mail accounts nor explicitly warned that the contents of such e-mails are stored on hard drives and can be later accessed. It then noted that the plaintiff had taken steps -- using a personal, password-protected account -- to protect her privacy, which indicated that she had a subjective expectation of privacy. Given the failure of the policy to explicitly reach the communications in question, that expectation was also objectively reasonable. Nor were the e-mails "illegal or inappropriate material." In light of the nature of the communications and the standard warning, the privilege attached and was not waived. "The Policy did not give Stengard, or a reasonable person in her position, cause to anticipate that Loving Care would be peering over her shoulder as she opened e-mails from her lawyer on her personal, password-protected Yahoo account."

So far, a ringing endorsement of employee privacy rights. But, of course, one that any competent attorney could easily draft around. I can almost see the management firms gearing up to redraft appropriate use policies to ensure that Stengart will protect few future employees in the Garden State, Or can they.

Section V B of the opinion begins by reaffirming the right of employers "to adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of the business and to ensure compliance with legitimate corporate policies." It even suggests that an employee who spends "long stretches of time" communicating with his lawyer can be disciplined for violating a policy allowing "only occasional personal use." It then goes on: "But employers have no need or basis to read the specific contents of personal, privileged, attorney client communications in order to enforce corporate policy." At least with respect to privileged communications, "even a more clearly written policy -- that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee's attorney-client communications if accessed on a personal, password-protected e-mail account using a company's computer system -- would not be enforceable.

So a pretty clear victory for employees -- if on narrow grounds.

Oh, and the Sills, Cummis firm? It violated the rules of professional responsibility (NJ's version of RPC 4.4(b)) by reading the e-mails. While there was no evidence of bad faith (presumably because of the Loving Care policy), the firm acted inappropriately. Sanctions, and potential disqualification from the case, were left to the trial court. One might predict little sanction by a trial court which, you might recall, didn't think the firm did anything wrong in the first place.

I'd put in a link to the case, but there's something wrong with the court's website. The case is not available on Lexis at the moment, but it should be up shortly.

We haven't posted much about the Patient Protection and Affordable Care Act because it focuses so much on regulating the insurance industry and to a lesser extent regulates employers. There's an important protection in it, though, for women who breastfeed their children. Section 4207 amends the Fair Labor Standards Act to require employers to give women reasonable breaks and a location that is not a bathroom to express breast milk. Here's the text.

SEC. 4207. REASONABLE BREAK TIME FOR NURSING MOTHERS. Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following: `(r)(1) An employer shall provide-- `(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and `(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. `(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose. `(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business. `(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.'.

While promoting expressing milk may not be problem free as a policy matter, many women rely on the ability to do so to feed their children, and this is a very important step forward that will support more women of more classes who want to breastfeed their children. I heartily applaud it.